Provision Language
5. WARRANTIES
5.1 Warranties. In connection with the transactions provided for in this Agreement, the Company warrants to Wellcome that, on the Effective Date, on the date of any Advance, and immediately prior to conversion of any part of the Loan (in each case, subject to matters fairly disclosed in the Disclosure Letter) that:
5.1.2 the Company has been duly incorporated and is validly existing under the laws of the jurisdiction of its incorporation and has not been dissolved, wound-up or liquidated and no petition or application has been presented or made in respect of the same;
5.1.3 the Company has all requisite corporate power and capacity to own its own property and assets and to carry on its business as now being conducted and enter into and deliver this Agreement and to perform its obligations under this Agreement;
5.1.4 all corporate action has been taken on the part of the Company, its directors and stockholders necessary for the issuance of the Loan and any Conversion Stock under this Agreement, which shall constitute the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms;
5.1.5 the Company has acquired all material licences, registrations, authorisations, permits, approvals and consents necessary to perform the Project and such licences, registrations, authorisations, permits, approvals and consents are in good standing;
5.1.6 the Company is conducting its business in material compliance, in all material respects, with all applicable laws, rules and regulations of each jurisdiction in which it carries on its business;
5.1.7 this Agreement, when executed, will constitute a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms;
5.1.8 neither the execution of this Agreement or compliance with the terms, conditions and provisions of this Agreement, will conflict with, accelerate the terms of, or result in a breach of any of the terms, conditions or provisions of:
(i) any agreement, instrument or arrangement to which the Company is now a party or by which it is or may be bound, or constitute a default thereunder;
(ii) any judgment or order, writ, injunction or decree of any court; or
(iii) any applicable law or regulation;
5.1.9 the Company has provided to Wellcome all information in its possession which it has a right to disclose to Wellcome, which is both material to the Project and material to Wellcome granting the Loan to the Company, and this information is true, accurate and not misleading in all material respects
5.1.10 to the knowledge of the Company, all Project IPRs created, devised or which have arisen prior to the date on which the Warranties are given, is free of Encumbrances and vested in the Company.
5.2 Inducement. The Company acknowledges that it has given the Warranties with the intention of inducing Wellcome to enter into this Agreement and, as the case may be, to make the Advances on the achievement of each of the Milestones and that Wellcome has been induced to enter into this Agreement and make available the Facility on the basis of and in full reliance upon them.
5.3 Separate warranties. Each of the Warranties shall be construed as a separate and independent warranty and (save where expressly provided to the contrary) shall not be limited or restricted by reference to or inference from any other term of this Agreement or any other Warranty.
5.4 Meaning of “knowledge”. Where any statement in the Warranties is qualified by reference to the knowledge, awareness or belief of the Company, the Company shall be deemed to be aware of all matters of which the following individuals are actually aware, following reasonable inquiry, but without any requirement to conduct any special search or investigation, or any freedom to operate inquiry: (a) Chief Executive Officer, (b) Chief Financial Officer, (c) General Counsel, (d) Chief Medical Officer, (e) Chief Development Officer and (f) Chief Operating Officer, or in each case, if such positions do not exist at Company, such individual, if any holding responsibilities substantially equivalent to the foregoing named positions.
5.5 Disclosures. The Company shall, unless otherwise required by applicable laws, rules or regulations, promptly disclose in writing to Wellcome any fact, matters, circumstances or other information which becomes known to the Company which:
(a) is a material breach of any of the Warranties;
(b) is material to (i) the Loan, (ii) the conversion of the Loan or (iii)the financial status of the Company, or
(c) is material to: (i) the Project, or (ii) the development and exploitation of the Product and/or the Project IPRs,
provided however, that information contained in filings with the Securities and Exchange Commission or which are otherwise in the Company’s public communications shall be deemed disclosed to Wellcome for the purposes of this Clause 5.5.